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Tuesday, December 23, 2014

Seventh Circuit: In Criminal Case, No Appellate Jurisdiction Over Indictment Dismissed Without Prejudice

By Nate NiemanNieman Law GroupUnited States v. Davis, 766 F.3d 722 (7th Cir. 2014), concerned the government’s appeal from a district court’s pre-trial discovery order entered in cases involving several defendants charged with conspiring to rob a non-existent “stash house” that the defendants believed contained many kilograms of cocaine. The defendants successfully obtained an order from the district court requiring the government to produce documents and data related to the exercise of the government’s law enforcement and prosecutorial discretion with respect to criminal charges based on non-existent stash houses. The government filed a “‘position paper’ in which it indicated that it would not comply with the discovery order and suggested that the court should dismiss the indictment without prejudice as a sanction for its noncompliance, thereby creating a final order” that could be appealed. The district court obliged the government’s request and the government appealed pursuant to 18 U.S.C. § 3731. However, the Seventh Circuit ultimately dismissed the government’s appeal for lack of appellate jurisdiction after concluding that the district court’s order dismissing the indictments without prejudice was not a final, appealable order.

The reviewing court began its analysis by noting that “The United States ‘has no right of appeal in a criminal case absent explicit statutory authority.’” Section 18 U.S.C. § 3731 explicitly authorizes the government to appeal from a dismissed indictment. Nevertheless, the defendants argued that the government could not appeal the district court’s order dismissing the indictment because the dismissed the indictment without prejudice. As a result, the government could re-indict the defendants regardless of any outcome on appeal. Thus, the dismissal of the indictment without prejudice was not a final and appealable order and, accordingly, not subject to appellate review.The Government argued that it was following “established practice” in seeking dismissal of the indictment without prejudice as a means of facilitating appellate review, and the reviewing court acknowledged that the government was correct that “an indictment need not necessarily be dismissed with prejudice in order to be subject to appeal.” The Seventh Circuit had previously found jurisdiction to entertain an appeal from an indictment dismissed without prejudice. Nonetheless, the court in this case was particularly concerned with the finality of the decision, regardless of the label given to it. The court noted that “With limited exceptions, our appellate jurisdiction is limited to review of ‘final decisions’” of the district court. While section 18 U.S.C. § 3731 allows the government to appeal from some orders that are non-final—such as orders suppressing or excluding evidence—such orders are exceptions to the rule that the order must otherwise be final in order to be appealable. Id.
Specifically, the reviewing court’s concern was that, “unless the dismissal solicited by the government is genuinely final, invited dismissal will essentially permit any number of interlocutory appeals that section 3731 does not otherwise authorize.” Discovery orders, the court noted, “are a prime example of pretrial decisions that are entrusted to the district court’s ample discretion in the first instance and that are ordinarily not subject to review, if at all, until a final judgment in the case has been rendered.”
In sum, the district court’s dismissal of the indictment in this case was not final, and therefore not appealable, because:

“Although the government’s decision to request dismissal of the indictment has ended—for now—the proceedings in the district court, the fact that the dismissal was without prejudice leaves the door open to reindictment. Obviously, if we were to reach the merits of the appeal and reverse both the dismissal and the underlying discovery order that prompted it, that step would be unnecessary. But even if we affirmed the discovery order as a reasonable exercise of the district court’s discretion, and in turn sustained the dismissal, nothing other than the statute of limitations would prevent the government from reindicting the defendants and complying with the discovery order.”

As a result, the Seventh Circuit dismissed the appeal for lack of jurisdiction.